Gujarat High Court
Gasfulbhai Mohmadbhai Bilakhia vs State Of Gujarat on 4 November, 2004
Equivalent citations: (2005)1GLR575
Author: K.A. Puj
Bench: K.A. Puj
JUDGMENT K.A. Puj, J.
1. The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the Circular dated 27.05.1992 issued by Section Officer, Revenue Department, State of Gujarat, Gandhinagar and consequentially praying for direction to the State officials to certify mutation Entry No. 5100 in respect of the lands in question effected in favour of the petitioner.
2. The petition was admitted on 18.10.1994 and interim relief was granted in terms of para 11 (B) whereby the execution, operation and implementation of the impugned Circular was stayed by this Court.
3. It is the case of the petitioner that the petitioner and one Smt. Bhuriben Nagarji Desai had family relations and had mutual love and affection for each other's families. On account of such relations between the two families, the said Smt. Bhuriben Nagarji Desai had decided to include the name of the petitioner in the will executed by her on 18.05.1992. By the said will, the said Smt. Bhuriben Nagarji Desai gave lands bearing Survey Nos. 712/1 and 707/6 of village Tukwada, Tal. Pardi, Dist. Bulsar to the petitioner. The said will was attested by witnesses as required by the provisions of the Transfer of Property Act and the Hindu Succession Act, 1956. It is also the case of the petitioner that after the execution of the said will, the said Smt. Bhuriben Nagarji Desai expired on 07.11.1993 at village Tukwada, Tal. Pardi, Dist. Bulsar. It is also the case of the petitioner that on the basis of the said will, mutation entry No. 5100 was effected in village Form No. 6 in respect of the lands bearing Survey Nos. 712/1 and 707/6 in the name of the petitioner on 10.11.1993. It is also the case of the petitioner that after the death of the said Smt. Bhuriben Nagarji Desai, the Talati-cum-Mantri of village Tukwada had recorded statements of the heirs and legal representatives of the deceased Smt. Bhuriben Nagarji Desai wherein they had stated that they had no objection if the mutation entry was effected in the name of the petitioner in the village record and the said lands were to be transferred in the petitioner's name.
4. It is also the case of the petitioner that after the aforesaid entry was effected, the petitioner waited for certification of the aforesaid mutation entry effected in his favour in the revenue record. On inquiry, however, he came to know that the officers of the revenue department of the respondent State have refused to certify the said entry on the basis of Circular dated 27.05.1992 issued by the respondent to the Collectors asking them not to permit transfer of any land in favour of the non-agriculturists on the basis of the wills.
5. It is this Circular issued by the State Government which is under challenge in the present petition.
6. Mr. A.J. Patel, learned advocate appearing with Mr. Y.N. Ravani for the petitioner has submitted that the impugned Circular runs counter to the expressed provisions of Section 59 of the Indian Succession Act, 1925 and Section 30 of the Hindu Succession Act, 1956 and also Section 63 of the Bombay Tenancy and Agricultural Lands Act. He has further submitted that the mandate of law contained in the Indian Succession Act as well as the Tenancy Act could not have been nullified by issuing the impugned Circular. The impugned circular is ultravires of the Provisions of Section 59 of the Act of 1925, Section 30 of the Act of 1956 and Section 63 of the Tenancy Act and, therefore, the said Circular is liable to be quashed and set aside. The action on the part of the respondent in refusing to certify the entry in favour of the petitioner is arbitrary, discriminatory and violative of the petitioner's fundamental rights under Article 14, 19 & 31 of the Constitution of India and as such, it is liable to be quashed and set aside. The impugned circular suffers from the vice of total non-application of mind on the part of the respondent to the relevant provisions of law and, therefore, the same is liable to be quashed and set aside.
7. Mr. Patel has further submitted that the issue involved in the present petition earlier arose before this Court in S.C.A. No. 96 of 1963 in the case of MANHARLAL RATANLAL V. TAIYABALI HAJI MOHMED (1967-68 (5) G.L.T. 199) decided on 19.01.1968 wherein while considering the restriction in Section 43 of the Tenancy Act, this Court has taken the view that it prohibits a transfer by sale, gift, exchange, mortgage, lease, assignment or partition. The expression "transfer" of property has not been defined in the Act. Section 2(21) provides that words and expressions used in this Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code and the Transfer of Property Act, as the case may be. The Court has, therefore, taken the view that the expression "transfer" used in Section 43 (1) and (2) will have to be read by reference to its meaning in the Transfer of Property Act. The Court has further taken the view that the word "bequest" is not included either in the word "Gift" or "assignment". Under Section 5 of the Transfer of Property Act, the expression transfer of property, means an act by which one living person conveys property to another living person in present or in future. The Court takes the view that a will takes effect on the death of the testor and, therefore, it is not a transfer by a testator, as it is only after the death of the testator that the will begins to speak. The Court has also expressed the view that the expression 'transfer' which is used in Section 43(1) must be interpreted in the light of the T.P. Act. It can only mean transfer by the act of the parties in the context of the said section as there are no compelling reasons which would justify any departure from the statutory definition by reason of anything repugnant in the subject or context. If the legislature wanted to include transfer by operation of law so as to include succession, insolvency, inheritance etc. or sales by public auction, specific provision would have been made to that effect. The Court has, therefore, taken the view that this being a restriction on the right of a transfer of the person having property in the lands in question, the restrictions will have to be strictly construed. The Court, therefore, held that when all the specific categories which are mentioned are all of transfers by act of the parties, the view of the tribunal was completely perverse that even a bequest by a will is included in this category either within the scope of the term gift or assignment, which are only particular kinds of 'transfer' as understood within the meaning of the T.P. Act.
8. Mr. Patel has further submitted that even the Revenue Department, Government of Gujarat has issued a Circular on 13.02.1989 interpreting - explaining the scope of the word 'assignment' as used under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 wherein it was stated that if the land is transferred by inheritance, insolvency or in public auction, provisions contained in Section 43 would not apply. It was also made very clear that if transfer is effected by will, it would not be considered as the breach of the provisions contained in Section 43 of the Act. Mr. Patel has, therefore, submitted that the impugned Circular issued by the Department is contrary to the earlier Circular and while issuing the impugned Circular, no reference of the earlier Circular has been given by the respondent authorities.
9. Mr. Patel has relied on the decision of this Court in the case of Ghanshyambhai Nabheram V. State Of Gujarat And Ors., 1999 (1) G.L.H. 644 wherein it is held that it is apparent that the Act of 1947 or Bombay Tenancy Act has no application to transmission of interests of holder on his death to his successor by any mode of succession of lands held by tenants. Revenue Laws dealing with agricultural lands have not made the lands inheritable. They also do not disqualify a non-agriculturist from inheritance nor a number of persons are disentitled from succeeding to estate of an agriculturist as body of successors, which may result in well defined definite share of the estate of deceased vesting in them individually.
10. Mr. Patel has further relied on the decision of this Court in the case of PRAVINBHAI BHILALBHAI GOR V. RAJIVKUMAR GUPTA, 1998 (2) G.L.H. 852 wherein it is held that likewise Sec. 63 restricts sale, gift, exchange or lease of any land or interest therein or mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee or any agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein shall not be valid in favour a person who is not an agriculturist except with the permission of the Collector or an officer authorised by the State Government in this behalf. Perusal of both the provisions, clearly go to show that it refers to only to transaction or transfer or agreement to transfer of land or any interest therein which are inter vivos and not to vesting of such rights in any one as a result of transmission or as a result of succession of death of holder. The provision do not affect the operation of law of inheritance. The Tenancy Act does not provide any separate rule of inheritance to the estate of the deceased tenant, otherwise then the personal law governing the estate of the deceased. Section 4 of the Hindu Succession Act gives the overriding effect to the provisions of the Hindu Succession Act in the matter of succession. In Clause (b) Sub-Section (1) of Section. 4, it is declared that any other law in force immediately before commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act. In Sub-Section (2), it saves the operation of laws relating to prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings. Since there is no special provision under the tenancy laws providing to devolution of tenancy rights of deceased tenant, the provision of the Hindu Succession Act would govern. Section 30 of the Hindu Succession Act acknowledges testamentary succession as a mode of succession on death of a Hindu male or female including that of undivided interest in coparcenary property of a male Hindu. Thus, testamentary succession is a permissible mode of succession in case of a death of a tenant who is Hindu. A Will is not an instrument of transfer of property by sale, gift, exchange or mortgage or lease or assignment nor it is an agreement. It needs two living persons to make an agreement. It is the unilateral declaration of a person fixing his own line of succession to his estate on his demise. The Will speaks as on the death of the testator and the succession takes place in accordance with the directions in the Will. It is devolution of interest of deceased by succession in the nominated persons and not transfer of interest of a person in any of the modes of transfer prescribed, which all relate to transfer inter vivos. The Will is not a document of transfer by way of sale, gift, exchange, mortgage, lease or assignment. It is instrument changing the course of devolution of interest by way of inheritance which even otherwise would have taken where the holder had died without a Will by way of interstate succession. The inheritance in the case of interstate succession would have been as declared in the Act. Neither Section 43 nor Section 63 envisage prior permission to any authority for executing a Will that would take effect after the death of a person which he has right to vary, cancel or modify anytime before his death as many times as the testator desires.
11. Mr. Patel has further submitted that the above decision of the learned Single Judge of this Court has been taken in L.P.A. before the Division Bench and though the said appeal was dismissed on the other grounds, the above finding of the learned Single Judge was not disturbed. A specific contention was raised before the Division Bench that there was breach of provisions of Section 43 & 63 of Bombay Tenancy & Agricultural Lands Act, 1948. The Court has not given any finding on that point and the appeal was dismissed. The Division Bench judgment in the case of STATE OF GUJARAT V. PRAVINBHAI BHAILALBHAI GOR is reported in 2000 (3) G.L.R. 2168.
12. Mr. Patel has further submitted that similar issue arose before the Hon'ble Supreme Court in the case of STATE OF WEST BENGAL AND ANR. V. KAILASH CHANDRA KAPUR AND ORS., A.I.R. 1997 SUPREME COURT 1348 wherein the Hon'ble Supreme Court has held that "Transfer connotes, normally, between two living persons during life: Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. Though as indicated earlier, the assignment may be prohibited if Government intended to be so. However, a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended, in view of the permissive language used in clause (12) of the covenants. The Court has further taken the view that unless the Government amends the rules or imposes appropriate restrictive covenants prohibiting the bequest in favour of the strangers or by enacting appropriate law, there would be no statutory power to impose such restrictions prohibiting such bequest in favour of the strangers."
13. Mr. Patel has further relied on the decision of this Court in the case of GOPIRAJ DEDRAJ AGRAWAL (GOPIRAM TUDRAJ AGRAWAL) V. STATE OF GUJARAT, 2004 (1) G.L.R. 237 wherein after considering the aforesaid judgments, this Court has quashed and set aside the orders passed by the revenue authorities.
14. Mr. Patel has, therefore, submitted that the impugned Circular is required to be quashed and set aside and the officials of the respondent State be directed to certify entry No. 5100 in favour of the petitioner.
15. Mr. Hasit Dave, learned A.G.P. appearing for the respondents, on the other hand, has submitted that the State Government is quite justified in issuing the impugned Circular whereby a person who is not an agriculturist cannot become an owner of the agricultural land simply because under the Will, an agricultural land is assigned to him. He has further submitted that it is nothing but a device under which the real object of the Tenancy Act has been given go-bye. Though in the memo of petition, it is alleged that the petitioner and the testator had family relations and had mutual love and affection for each other's family, it is unbelievable on the face of it as the petitioner is from the Muslim community and the testator was from Hindu community. Except the bare words in the petition, there is no documentary evidence to the effect that there was any family relation between the petitioner and the testator. Mr. Dave has further submitted that the testamentary disposition cannot be effected to a stranger to a family. In support of his submission, he relied on the decision of the Hon'ble Supreme Court in the case of SANGAPPA KALYANAPPA BANGI (DEAD) THROUGH LRS. V. LAND TRIBUNAL, JAMKHANDI AND ORS., (1998) 7 SUPREME COURT CASES 294 wherein, while dealing with the provisions contained in Sections 21 & 24 of Karnataka Land Reforms Act, 1961, the Hon'ble Supreme Court has held that the object of Section 21 is not to allow strangers to the family of the tenant to come upon land. The tenanted land is not allowed to be sub-let, i.e., to pass to the hands of a stranger nor any kind of assignment taking place in respect of the lease held. If the tenant could assign his interest, strangers can come upon the land and, therefore, the expression "assignment" will have to be given such meaning as to promote the object of enactment. Therefore, the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship. As to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. When it is possible for the tenant to pass the property to those who may not necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event, it must be taken that a devise under a Will will also amount to an assignment and, therefore, be not valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21, it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. The Hon'ble Supreme Court has, however, made it clear that it is true that meaning of heir can include the descendant and other persons related by legitimate kinship or otherwise who may be covered by a Will, but the true question to be decided in this case is if a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to confine the rights of tenancy only to those known under law as heirs and, therefore, assignment to strangers is barred.
16. Mr. Dave has further relied on the decision of the Hon'ble Supreme Court in the case of SHRIRAM MANDIR SANSTHAN ALAIS SHRI RAM SANSTHAN PUSDA V. VATSALABAI AND ORS., A.I.R. 1999 SUPREME COURT 520 wherein while dealing with Sections 54, 129(b) of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, the Hon'ble Supreme Court has held that Section 54 does not apply to the tenants of the trusts or educational institutions. At least for tenants of the description falling under Section 54(1)(b) and Section 54(3), the ordinary law of inheritance is not applicable in all cases where tenancies are not governed by Section 54. The exclusion of Section 54 necessarily implies exclusion of ordinary law of inheritance. However, the ordinary law also provides for testamentary succession. Section 54 does not preserve the right of a tenant to make a will bequeathing his tenancy to a person of his choice in the case of those tenancies which are governed by Section 54. Heritability is to be governed entirely by Section 54. Therefore, by excluding Section 54, the clear intention is to make such tenancies nonheritable. The Court has further held that Section 54(1)(a) cannot be read differently from Section 54(1)(b) or Section 54(3). The entire section must be read harmoniously. The legislative intention as seen from the scheme of Section 54 is, that heritability of any tenancy falling within the definition of that term under the Tenancy Act of 1958 is governed exclusively by Section 54. Where Section 54 is made expressly non-applicable under the Tenancy Act of 1958, the tenancy is not heritable at all. An express provision in the Act which excludes the operation of certain provisions, cannot be made nugatory by resorting to general law. Therefore, in the case of tenancies of such trusts, preservation of rights and privileges of a tenant under any law for the time being in force is excluded. Therefore, the rights and privileges of any tenant of such land belonging to a trust or religious institution would only be as prescribed under the Tenancy Act, 1958. A reason cannot be had to any other law for the time being in force to determine their rights and privileges. The Court, therefore, held that it cannot be said that although Section 54 is excluded, the ordinary law of succession and inheritance is not. Thus the tenancy of lands belonging the institutions covered by Section 129(b) would not be heritable under the ordinary law if not under Section 54. The Court has further held that the clear intention of Section 129 is to protect certain lands from tenancy legislation where the lands or income from such lands is being utilised for public purposes set out there. In this context, if the tenancy of such lands are not made heritable, this would clearly be in furtherance of the purpose of exempting such lands under Section 129.
17. Mr. Dave has further relied on the decision of the Hon'ble Supreme Court in the case of BHAVARLAL LALCHAND SHAH V. KANAIYALAL NATHALAL INTWALA, 27 [1986] (1) G.L.R. 492 wherein while dealing with the provisions contained in Sections 5(11), 5(11)(c)(ii), 15 of Bombay Rents, Hotel and Lodging House Rates Control Act (LVII of 1947), the Hon'ble Supreme Court has held that in case of a building which is let for business, it is provided in Sec. 5(11)(c)(ii) of the Bombay Rent Act that any member of the tenant's family carrying on business, trade or storage with the tenant in the premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as case may be in the said premises and as may be decided in default of agreement by the Court, shall be treated as a tenant. It is significant that both sub-clauses (i) and (ii) of Clause (c) of Sub-Sec. (11) of Sec. 5 of the Act which deal with the devolution of the right to tenancy on the death of a tenant in respect of residential premises and premises let for business, trade or storage respectively do not provide that the said right of tenancy can devolve by means of testamentary disposition on a legatee who is not referred to in the respective sub-clauses. It has, therefore, to be understood that even the extended meaning given to the expression 'tenant' by sub-sec. (11) of Sec. 5 of the Act does not authorise the disposition of the right to the tenancy of the premises governed by the Act under a Will. Ordinarily, it is only an interest that can be inherited that can be bequeathed. But the heritability of a tenancy after the determination of the lease, which is protected by the Act is restricted in the case of residential premises only to the members of the tenant's family mentioned in sub-clause (i) of Cl. (c) of Sec. 5(11) of the Act and in the case of premises let for business, trade and storage to members belonging to the family of the tenant carrying on business, trade or storage with the tenant in the premises at the time of the death of the tenant as may continue after his death to carry on the business, trade or storage as the case may be in the said premises, and as may be decided in default of the agreement by the Court as provided in sub-clause (ii) thereof. When the statute has imposed such a restriction, it is not possible to say that the tenant can bequeath the right to such tenancy in the case of premises let for business, trade or storage in favour of a person not possessing the qualification referred to in Sec. 5(11)(c)(ii) of the Act.
18. Mr. Dave has further relied on the decision of the Hon'ble Supreme Court in the case of VASANT PRATAP PANDIT V. DR. ANANT TRIMBAK SABNIS, JT 1994 (3) S.C. 267 wherein while dealing with the provisions contained in Section 5(11)(c) and Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and while deciding the question as to whether tenancy rights under the Act can be devised by a will and whether the words 'assign' and 'transfer' in Section 15 include 'bequest', the Hon'ble Supreme Court has held that the legislature could not have intended to confer such a right on the testamentary heir. Otherwise, the right of the landlord to recover possession will stand excluded even though the original party (the tenant) with whom the landlord had contracted is dead. Besides, a statutory tenancy is personal to the tenant. In certain contingencies as contemplated in Section 5(11)(c)(i) certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law. The Hon'ble Supreme Court has further held that the matter may be viewed from another angle also. If the word 'heir' is to be interpreted to include a 'legatee' even a stranger may have to be inducted as a tenant for there is no embargo upon a stranger being a legatee. The contention that 'heir' under a will may be confined to only members of the family cannot be accepted for there is no scope for giving such a restrictive meaning to that word in the context in which it appears in the Act as earlier noticed, unlike in other Rent Acts. The Hon'ble Supreme Court has further held that coming now to the meaning of the words 'assign' or 'transfer' as appearing in Section 15, we find that 'transfer' has been qualified by the words 'in any other manner' and we see no reason why it should be restricted to mean only transfer inter-vivos. As has been rightly pointed out by the High Court in the impugned judgment, the Transfer of Property Act limits its operation to transfer inter-vivos and, therefore, the meaning of the word 'transfer' as contained therein cannot be brought in aid for the purpose of the Act. On the contrary, the wide amplitude of the words 'in any other manner' clearly envisages that the word 'transfer' has been used therein a generic sense so as to include transfer by testament also.
19. Based on the aforesaid judgments, Mr. Dave has submitted that even under the Tenancy Act also, the meaning of the word 'transfer' or 'assign' given in the Transfer of Property Act should not be restricted and it would also cover the testamentary disposition which may be hit by Section 43 of the Tenancy Act. He has, therefore, submitted that the respondent authorities are justified in not granting certification of the entry in question on the basis of the Circular issued by the State Government.
20. After having heard learned advocates appearing for the respective parties and after having gone through the contents of the petition as well as two Circulars issued by the State Government and various authorities cited before the Court, this Court is of the view that so far as the authorities cited by learned advocate appearing for the petitioner are concerned, they are directly on the point and this very issue arose before the Court earlier with regard to applicability of Section 43 as well as Section 63 of the Act to the testamentary disposition and in that context, the Court has taken the view that the testamentary disposition in favour of a stranger is not hit by the provisions contained in Section 43. Even the earlier Circular issued by the State Government also supports the case of the petitioner wherein it is specifically stated that the Transfer under the Will in favour of a stranger is not hit by the provisions contained in Section 43 of the Tenancy Act.
21. As far as the authorities relied on by learned A.G.P. Mr. Hasit Dave are concerned, they are not directly on the point and the view taken by the Court in those decisions keeping in mind the specific provisions contained in the respective statutes. In SANGAPPA BANGI's case (SUPRA), the Hon'ble Supreme Court was interpreting Section 21 of the Karnataka Land Reforms Act, 1961 and it was held that allowing stranger on tenancy land will be detriment of the landlord. As this question of bequeathing of tenancy right issue was quite different than the issue involved in the present petition, the ratio of the said judgment cannot be pressed into service in the present case. As far as the decision of SHRIRAM MANDIR SANSTHAN's case (SUPRA) is concerned, the Hon'ble Supreme Court has found that in view of exclusion of Section 54 by applying Section 129 (b) of the Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958, tenancy rights cannot go by succession i.e. either by devolution or by testament also. It was based on the interpretation of the said Sections and it has no relevance looking to the facts and circumstances of the present case. As far as the decision of BHAVARLAL LALCHAND SHAH's case (SUPRA) and Vasant Pratap Pandit's case (SUPRA) are concerned, they deal with the rights of the tenants under the Rent Act and hence they are not relevant to the facts and circumstances of the present case. It is equally important to note here that time and again the Courts have held that a substantial right conferred on the person under the general law cannot be taken away by mere issuance of the executive instructions. If the legislatures are intended to take away such rights, the same can be done only by way of the legislative Act. Unless the Government amends the rules or imposes appropriate restrictive covenants prohibiting the bequest in favour of the strangers or by enacting the appropriate law, there would be no statutory power to impose such restrictions prohibiting such bequeaths in favour of the strangers. This Court has also made it very clear in the case of MANHARLAL RATANLAL ALIAS RADMANSING CHAUHAN V. TAIYABALI HAJI MOHMEDALI AND ORS., in S.C.A. No. 96 of 1963 decided on 19.01.1968 (SUPRA) that "if the legislature wanted to include transfer by operation of law so as to include succession, insolvency, inheritance etc. or sales by public auction, specific provision would have been made to that effect. The Court has, therefore, taken the view that this being a restriction on the right of a transfer of the person having property in the lands in question, the restrictions will have to be strictly construed." This Court is, therefore, in complete agreement with the view taken in earlier decisions cited (SUPRA) and is of the view that the State Government is not justified in restricting the right of the petitioner by issuing the impugned Circular and thereby the officials of the State Government are not justified in refusing the certification of the entry in question. The Court, therefore, holds that the impugned Circular dated 27.05.1992 is contrary to the law laid down by this Court in the aforesaid Judgments and the same cannot be applied while deciding the issue regarding certification of the entry made on the basis of testamentary disposition.
22. The petition is, therefore, allowed. Rule is made absolute to the above extent without any order as to costs.